Md. Abdul Matin vs The State Of Tripura
2021 Latest Caselaw 1219 Tri

                        HIGH COURT OF TRIPURA
                              AGARTALA
                             A.B. No. 82 of 2021

Md. Abdul Matin,
Son of late Abdul Majid, resident of Safrikandi, P.O. Tilabazar, P.S. Irani,
Kailasahar, District-Unakoti, Tripura.
                                                   ............... Petitioner(s).
                                    Vs.
The State of Tripura
                                                  ............... Respondent(s).

For Petitioner(s) : Mr. P. K. Biswas, Sr. Advocate, Mr. P. Majumder, Advocate, Mr. Pujan Biswas, Advocate, Ms. Varsha Poddar, Advocate.

For Respondent(s) : Mr. Ratan Datta, Public Prosecutor.

Mr. S. Ghosh, Addl. Public Prosecutor.

HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY Order

08/12/2021

This is an application under Section 438 of the Code of

Criminal Procedure, 1973 for granting pre-arrest bail to Md. Abdul

Matin who has been apprehending arrest in Kailashahar P.S Case No.

116 of 2021 which has been registered under Sections 341, 326, 307

and 153A read with Section 34 of the Indian Penal Code.

[2] Heard Mr. P. K. Biswas, learned Sr. Advocate appearing

along with Mr. Pranabashish Majumder, Mr. Pujan Biswas and Ms.

Varsha Poddar, learned Advocates for the petitioner. Heard Mr. Ratan

Datta, learned Public Prosecutor appearing along with Mr. S. Ghosh,

learned Additional P.P for the State-respondent.

[3] The factual context of the case is as under:

Anup Kanti Majumder of Kailashahar lodged a written FIR

with the Officer-in-Charge of Kailashahar Police Station on

29.10.2021 alleging, inter alia, that at about 1.45 p.m. on the day,

he along with other members of their organization called AVBP

assembled in the school premises of R.K.I School at Kailashahar with

the permission of the school authority where they convened a

meeting of their organization and such meeting was scheduled at

2.30 p.m on the day. Soon after they came in front of the school

gate, 3(three) boys appeared there on a motor bike and started

pelting shone towards them. At that time two lady teachers of the

school informed the matter to police and immediately thereafter the

Officer-in-Charge of Kailashahar police station accompanied by other

police staff and TSR personal arrived at the soot. In front of police

10-12 persons attacked the informant and the other members of

their organization who were present there. Accused, Najmul Islam

took out a knife from his pocket and stabbed Sibaji Sengupta which

caused bleeding injuries in his belly. The injured was immediately

taken to the nearby hospital from where he was referred to G.B.P

and AGMC Hospital, Agartala. The informant alleged that accused

Najmul Islam intended to kill Sibaji Sengupta and cause a communal

riot at Kailashahar. The informant named 3(three) accused in his FIR

who were Md. Najmul Islam, Md. Juber Ahamed and Md. Iyaira Khan.

[4] Based on his FIR, Kailashahar police station Case No.

2021 KLS 0116 under Sections 341, 326, 307, 153-A and 34 IPC was

registered and the case was taken up for investigation. Apprehending

arrest in the case, petitioner Md. Abdul Matin has approached this

Court for pre-arrest bail.

[5] Appearing for the petitioner, Mr. Biswas, learned Sr.

Advocate contends that even though name of the petitioner does not

appear in the FIR, he is apprehending that the informant and the

members of his organization are very likely to implicate him during

the investigation of the case since he belongs to a different political

party. It is contended by Mr. Biswas, learned Sr. counsel that in view

of such apprehension, petitioner moved a bail application under

Section 438 Cr. P.C before the Sessions Judge, Kailashahar which

was heard by the Addl. Sessions Judge in Criminal Misc. 51(4) of

2021. Counsel submits that even though, his petition was rejected by

the learned Addl. Sessions Judge by his order dated 19.11.2021, it

was viewed by the learned Addl. Sessions Judge that materials

available against the petitioner were not sufficient to constitute an

offence punishable under Sections 307 and 326 IPC. The Additional

Sessions Judge rejected the bail application of the petitioner only on

the ground that the case diary revealed incriminating materials for

offence punishable under Section 153A IPC. Counsel refers to Section

153A IPC and contends that the basic elements of Section 153A IPC

are missing in this case because there is not even any whispering

that the accused in any manner tried to promote communal hatred.

In support of his contention, counsel has referred to a decision of the

Apex Court in the case of Patricia Mukhim Vrs. State of

Meghalaya and Others; reported in AIR 2021 SC 1632 wherein

the Apex Court while deliberating on Section 153A IPC held as under:

"9. Only where the written or spoken words have the tendency of creating public disorder or disturbance of law and order or affecting public tranquility, the law needs to step in to prevent such an activity. The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153 A IPC and the prosecution has to prove the existence of mens rea in order to succeed.

10. The gist of the offence under Section 153 A IPC is the intention to promote feelings of enmity or hatred between different classes of people. The intention has to be judged primarily by the language of the piece of writing and the circumstances in which it was written and published. The matter complained of within the ambit of Section 153A must be read as a whole. One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning."

[6] Relying on the said judgment, counsel submits that there

is no iota of evidence against the present petitioner that he uttered

any word or by any other means tried to hurt the feelings of a

particular community or to generate any enmity or hatred between

two classes of people.

[7] To further establish his contention that there is no

prima facie case under Section 153A IPC against the petitioner,

counsel has also referred to a decision of the Apex Court in Balwant

Singh and Another Vrs. State of Punjab; reported in (1995) 3

SCC 214 wherein the Hon'ble Apex Court has held as under:

"9. Insofar as the offence under Section 153A IPC is concerned, it provides for punishment for promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever or brings about disharmony or feeling of hatred or ill-will between different religious, racial, linguistic or regional groups or castes or communities. In our opinion only where the written or spoken words have the tendency or intention of creating public disorder or disturbance of law and order or effect public tranquility, that the law needs to step in to prevent such an activity.* * * * **"

[8] Counsel reiterates in his submission that in the given

facts and circumstances of the case no intention of creating public

disorder or disturbance can be attributed to the present petitioner.

Counsel submits that since the Additional Sessions Judge,

Kailashahar has recorded a clear finding that there is no prima facie

material under Section 307 and 326 IPC, for the charge of Section

153A IPC, police has no power to arrest the accused without issuing

mandatory notice of appearance to him under Section 41A Cr. P.C. In

support of his contention counsel has referred to the decision of the

Apex Court in the Case of Arnesh Kumar Vrs. State of Bihar and

another; reported in (2014) 8 SCC 273 wherein the Apex Court

has held that in all cases where punishment for the offence is less

than seven years or up to seven years, the investigating agency shall

not arrest a person without issuing notice of appearance under

Section 41A Cr. P.C. In this regard, counsel refers to the direction of

the Apex Court in paragraph-12 of the said judgment which reads as

under:

"12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section

498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine."

[9] Finally, it is contended by learned counsel of the

petitioner that the present petitioner who has a permanent place of

abode within the jurisdiction of the court does not have any criminal

antecedent. Since there is no iota of incriminating materials against

him in support of the charges which have been brought against him,

he needs to be protected from arrest and detention by way of

granting pre-arrest bail to him.

[10] Mr. Ratan Datta, learned Public Prosecutor vehemently

opposes the bail application on the ground that there are serious

incriminating materials against the present petitioner. Mr. Datta,

learned Public Prosecutor has referred to the police statements of the

witnesses available in the case diary who according to him have

specifically stated that the petitioner was present at the place of

occurrence who took an active role in the alleged offence. According

to Mr. Datta, learned Public Prosecutor, a member of the organization

namely AVBP was stabbed by one of the members of the assembly in

furtherance of the common object of the assembly in which the

present petitioner was a member and the injured was hospitalized in

critical condition. Counsel has also referred to the statement of the

medical officer as well as the injury report which demonstrate that

the injury was grievous and a sharp weapon was used in causing

such injury. Learned P. P therefore, submits that there are all

elements of Section 326 IPC in the case. Counsel contends that the

assembly of the accused persons had a clear intention of killing the

injured and, as such, Section 307 IPC also applies to this case. It is

also submitted by learned P.P that the present petitioner is not

cooperating with the investigating agency for which the investigating

agency has approached the jurisdictional Magistrate for declaring the

petitioner a proclaimed offender. Counsel submits that it is a settled

proposition of law that when an accused is found absconding or he

has been declared a proclaimed offender, relief under Section 438

cannot be granted to such accused. In support of his contention Mr.

Ratan Datta, learned P.P has relied on a decision of the Apex Court in

State of Madhya Pradesh Vrs. Pradeep Sharma; reported in AIR

2014 SC 626 wherein the Apex Court in paragraph 12 has observed

as under:

"12) Recently, in Lavesh vs. State (NCT of Delhi), (2012) 8 SCC 730, this Court, (of which both of us were parties) considered the scope of granting relief under Section 438 vis-à-vis to a person who was declared as an absconder or proclaimed offender in terms of Section 82 of the Code. In para 12, this Court held as under:

"12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as "absconder". Normally, when the accused is "absconding" and declared as a "proclaimed offender", there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail."

It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in

terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail. In the case on hand, a perusal of the materials i.e., confessional statements of Sanjay Namdev, Pawan Kumar @ Ravi and Vijay @ Monu Brahambhatt reveals that the respondents administered poisonous substance to the deceased. Further, the statements of witnesses that were recorded and the report of the Department of Forensic Medicine & Toxicology Government Medical College & Hospital, Nagpur dated 21.03.2012 have confirmed the existence of poison in milk rabri. Further, it is brought to our notice that warrants were issued on 21.11.2012 for the arrest of the respondents herein. Since they were not available/traceable, a proclamation under Section 82 of the Code was issued on 29.11.2012. The documents (Annexure-P13) produced by the State clearly show that the CJM, Chhindwara, M.P. issued a proclamation requiring the appearance of both the respondents/accused under Section 82 of the Code to answer the complaint on 29.12.2012. All these materials were neither adverted to nor considered by the High Court while granting anticipatory bail and the High Court, without indicating any reason except stating "facts and circumstances of the case", granted an order of anticipatory bail to both the accused. It is relevant to point out that both the accused are facing prosecution for offences punishable under Sections 302 and 120B read with Section 34 of IPC. In such serious offences, particularly, the respondents/accused being proclaimed offenders, we are unable to sustain the impugned orders of granting anticipatory bail. The High Court failed to appreciate that it is a settled position of law that where the accused has been declared as an absconder and has not cooperated with the investigation, he should not be granted anticipatory bail."

[11] Under the premises, aforesaid, learned Public Prosecutor,

urges the Court for rejecting the bail application of the present

petitioner.

[12] I have gone through the entire case record including the

updated case diary. Considered the submissions of learned counsel

representing the parties. In the FIR the informant specifically named

3 (three) accused persons and obviously, the name of the present

petitioner does not appear in the FIR. His name transpired during

investigation of the case. It appears from the case diary that some of

the witnesses have stated that the accused was present at the place

when FIR named accused Najmul Islam caused hurt to Sibaji

Sengupta. Learned Public Prosecutor has, therefore, argued that

since he was a member of the assembly and the offence was

committed by the assembly with a common object, he cannot escape

the charges under Sections 326 and 307 read with Section 34 IPC.

[13] Evidently none of the prosecution witnesses whose

statements have been recorded by police said that the petitioner in

any manner incited any of the accused to commit the alleged

offence. Undisputedly, the petitioner lives within vicinity of the school

where the offence was committed. Counsel of the petitioner argued

that naturally a person would be curious to know what is happening

in his neighbourhood. Counsel submitted that petitioner came to the

place of occurrence out of curiosity for which he cannot be roped with

the same charges under which the assailant of the victim has been

booked.

[14] It is true that except his mere presence at that place of

occurrence, no overt act has been attributed against him. There is no

material even to infer that the petitioner was a party to any pre-

oriented plan or he was otherwise aware of the intention of the other

accused persons. Only for his mere presence near the place of

occurrence, common intention cannot be attributed to him to

facilitate his arrest and detention during investigation.

[15] With regard to the charge under section 153A IPC, as

discussed, there is no material against the present petitioner to

suggest that by words either spoken or written or by any other

means, as enumerated under Section 153A IPC petitioner incited

anyone to create violence or promote communal hatred. In the case

of Patricia Mukhim (supra), the Hon'ble Apex Court has succinctly

held that the intention to cause disorder or incite people to violence

is the sine qua non of the offence under Section 153A IPC and

prosecution has to prove the existence of mens rea in order to

succeed.

[16] Having examined the case in light of the judgments of

the Apex Court cited to supra, I am of the view that the materials

available on record do not prima facie constitute an offence

punishable under Section 153A IPC against the petitioner.

[17] Therefore, having found no prima facie material against

the present petitioner in support of the charges brought against him,

this court is of the view that the benefit of anticipatory bail can be

extended to the petitioner. Accordingly, it is ordered that in the event

of his arrest petitioner shall be released on bail on his furnishing bail

bond of Rs.30,000/-(rupees thirty thousand) with one local surety of

the like amount. However in order to facilitate a free and fair

investigation, the following conditions are imposed on his bail.

(i) If the petitioner is having any Pass Port, he will surrender the same before the Investigating Officer immediately.

(ii) He will record his appearance at the police station before the Investigating Officer once in a week.

(iii) He will not try to influence any of the witnesses of the case directly or indirectly.

[18] The Chief Judicial Magistrate, Kailashahar may relax any

of the conditions under 1 and 2 or both under appropriate

circumstances.

In terms of the above, the bail petition is allowed and

stands disposed of. Return the Case Diary.

JUDGE

Dipankar